Disentangling Legal Quagmires: The Legal Characterization of the Armed Conflicts in Afghanistan and the Prisoners of War Status

Abstract

The September 11 attacks and the ensuing military operations in Afghanistan have raised a multitude of complex and disturbing problems for the existing humanitarian normative order. Much of the legal scholarship on recent events concerning Afghanistan has focused on the issues of the legal status of captured Taliban and Al Qaeda soldiers under humanitarian law, their detention conditions at Guantánamo Bay in Cuba and the inadequacy of procedural safeguards for judicial proceedings of the proposed Military Commissions under the US Presidential Order and the Department of Defence Order. This paper takes a somewhat different approach, looking first at the legal characterisation of the armed conflicts in Afghanistan since 6/7 October 2001 and particularly the internecine hostilities that have continued since the apparent end of the war, before examining the status of combatants and that of prisoners of war. Clarification of the nature of the armed conflicts and of the scope of application of the rules on prisoners of war is essential for disentangling the legal quagmire surrounding the controversy over the legal status of both Taliban and Al Qaeda soldiers under the jus in bello